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Mannillo v. Gorski

Decided: March 14, 1968.

FRED MANNILLO AND ALICE MANNILLO, PLAINTIFFS,
v.
MARGARET GORSKI, DEFENDANT



Lane, J.s.c.

Lane

At the conclusion of the final hearing, the Court made certain findings of fact and rendered judgment for the defendant that she had acquired ownership by adverse possession of a strip of land 15 inches in width running the length of her west boundary, the record title to which strip was in the plaintiffs. The matter is now before the Court on motion by the plaintiffs for an order granting a new trial or setting aside the judgment on the grounds that the judgment is contrary to the weight of the evidence and that the judgment is contrary to the law, and as a necessary corollary, entering judgment for the plaintiffs.

In the spring of 1945, the defendant with her husband went into possession of her property under a contract dated April , 1945. She continues to be in possession. The property, in Keansburg, is rectangular. It has a frontage of 25 feet on West Shore Street and extends 100 feet south to South Street. Under date of April 16, 1962, the defendant and her husband, who is now deceased, obtained a deed to the premises. Plaintiffs own the adjoining lot to the west, having gone into possession shortly after May 23, 1953. Their lot has the same dimensions.

It is admitted that there is a 15 inch encroachment upon the plaintiffs' land by steps leading from the west side of the defendant's house and a concrete walk that runs south from the steps to South Street.

In the summer of 1946, one of the defendant's sons, who was then 14 years old, with the assistance of his father, made certain additions and changes to the defendant's house. He extended two rooms at the rear of the house, closed in a screen porch on the front, and put a concrete platform with steps on the west side of the house for use in connection with a side door. Prior to that time there had been wooden

steps at that location. In 1953, certain necessary repairs were made to both the plaintiffs' and the defendant's houses because of a flooding condition that had occurred. The foundations of both houses were raised. The same son who had put in the original concrete steps built new steps but on the location of the original concrete steps. It was alleged by the plaintiffs that at the time the new steps were installed in 1953, the encroachment was either begun or was increased.

From the platform the steps, which are of the same width, run both to the south and to the north. The platform forms a stoop for a door leading to the kitchen of the defendant's house and extends 33 inches west from the house. The door itself is 36 inches wide. The door would not be useable if the platform and steps were cut down by 15 inches.

At the time the original concrete steps were installed, there was a concrete walk installed from the steps south to the end of the house. This concrete walk was the same width as the steps. At that time the area between the two houses was dirt. Sometime later, the concrete walk was extended further to the south from the rear of the house to South Street.

In 1965 the plaintiffs engaged a fence company to put a wire fence completely around their property. This fence was placed up to the platform in question. It is, therefore, approximately 15 inches inside the east boundary of the plaintiffs' land. Previously there had been a fence running from approximately the location of the platform to the rear of the plaintiffs' property, which fence was installed by the plaintiffs' predecessor in title in late 1947 or early 1948. This fence was west of the platform and walk.

Plaintiff Fred Mannillo testified that in 1960 after the property to the west of his lot had been surveyed and staked out, he ran a tape from the easterly stake across the front of his property and at that time discovered that defendant's walk and steps encroached. He further testified that he spoke to the defendant about the encroachment at that time;

however, he made no real complaint concerning it. For the reasons stated at the conclusion of the trial, the Court does not believe the testimony of Mr. Mannillo that he protested to the defendant at that time or at any time until shortly before the complaint was filed.

At the conclusion of the final hearing, the Court under the authority of Poulos v. Dover Boiler & Plate Fabricators, 5 N.J. 580 (1950) ruled against the ...


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